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Amended 6/9/03
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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________
Rockingham
No. 2001-425
TRANSMEDIA RESTAURANT COMPANY, INC.
v.
THERESA DEVEREAUX & a.

Argued: January 8, 2003

Opinion Issued: May 2, 2003

Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert

H. Miller on the brief), and Shuchman & Krause-Elmslie, P.L.L.C.,
of Exeter (Peter F. Kearns on the brief and orally), for the
plaintiff.
Engel & Associates, P.A., of Exeter (David C. Engel on the
brief and orally), for the defendants.

BROCK, C.J. The plaintiff, Transmedia Restaurant Company,

Inc. (Transmedia), appeals a jury verdict from the Superior Court
(McHugh, J.) finding it liable for claims under the Massachusetts
Uniform Commercial Code (UCC), see Mass. Gen. Laws Ann. ch. 106,
9-504, 9-507 (West 1999) (amended 2001), and RSA chapter 358-
A, the New Hampshire Consumer Protection Act (CPA), and awarding
compensatory and multiple damages to the defendants, Theresa
Devereaux and The Blarney Stone Tavern, Inc. The defendants
cross-appeal the trial court's order of remittitur. We affirm.
The jury could have found the following facts. Devereaux
and her husband were restaurateurs. In December 1997, Devereaux
opened the Blarney Stone Tavern (Tavern) in Derry. From 1993
until 1998, her husband owned and operated the Blarney Stone Inn
(Inn) in Hampton. In 1998, the Devereauxs received two $4,000
loans for their restaurant businesses from Transmedia.
Transmedia is a division of Transmedia Network, Inc., which
is a company that loans money to restaurants in exchange for the
restaurant's membership in a nationwide network that accepts the
Transmedia Card. Consumers use the Transmedia Card at
participating restaurants to receive a discount on their food and
beverage tab, not including tax and gratuity. Restaurants repay
their loans from Transmedia by transferring 100% of the food and
beverage tabs, less taxes and tips, generated by Transmedia
cardholders back to Transmedia. Transmedia credits these
repayments against the loan until twice the value of the loan has
been repaid.

The Inn went out of business in August 1998, and, in

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February 1999, the Tavern went out of business. In November
1998, the two loans were consolidated.

Transmedia later repossessed and liquidated the Tavern's

secured assets to recover the amount due under its loans. In
June 1999, the restaurant's equipment was sold in private sale
and public auction for $17,363.40. Because the proceeds of the
liquidation, less expenses associated with the auction, were less
than the amount due on the loans, Transmedia sued to recover the
deficiency. The defendants counter-sued, alleging that no
deficiency existed, in part, because Transmedia repossessed their
restaurant equipment without prior notice and sold the equipment
at a price far below its true value. The defendants also alleged
that the manner of sale violated the CPA. Just before trial,
Transmedia elected to take a nonsuit on its deficiency claim.
The case was thus tried solely upon the defendants'
counterclaims. The jury found for the defendants and awarded
them $140,600 in compensatory damages and $407,800 in multiple
damages under the CPA.
Transmedia moved to set aside the verdict, for judgment
notwithstanding the verdict and to reduce the damage award. The
trial court reduced the jury's compensatory damage award, finding
that the evidence could support an award of up to $50,000.
Applying a statutory multiplier, see RSA 358-A:10 (1995), the
court ruled that the total damages were $145,000, excluding costs
and reasonable attorney's fees. The court offered the parties
three options, including accepting the court's order of
remittitur and thereby concluding the case. The plaintiff and
defendants filed motions to reconsider, which the court denied.
This appeal and cross-appeal followed.

I. Transmedia's Appeal
On appeal, Transmedia argues that the trial court: (1)
failed to instruct the jury that to award multiple damages under
the CPA, it had to find that Transmedia acted willfully or
knowingly; (2) failed to include a question regarding whether
Transmedia acted willfully or knowingly in the special verdict
form; and (3) erroneously permitted the defendants to present
their damages theory to the jury without expert testimony. We
address each argument in turn.
A. Jury Instruction

"The purpose of jury instructions is to identify issues of

material fact, and to inform the jury of the appropriate
standards of law by which it is to resolve them." Broderick v.
Watts, 136 N.H. 153, 163 (1992). We review jury instructions in
context and will not reverse unless the charge, taken in its
entirety, fails to adequately explain the law applicable to the
case in such a way that the jury is misled. See Simpson v. Wal-
Mart Stores, 144 N.H. 571, 574 (1999).
The court gave the jury the following instruction regarding
the CPA:

Now, let's talk a little bit about the Consumer

Protection Statute. In essence, that statute provides
that it shall be unlawful for any person - and by the
way, any person is any natural person or a corporation
- to use any unfair or deceptive act or practice in the
conduct of any trade or commercial transaction in the
State of New Hampshire.
It is the responsibility of the jury to determine
whether or not any unfair or deceptive act or practice
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occurred on the part of [Transmedia]. You must
consider, after a careful evaluation of all the
evidence, whether or not the conduct of [Transmedia]
regarding the financial obligation to [Devereaux]
constituted an unfair or deceptive business practice.
On this issue it is [Devereaux who] has the burden of
proof.

If you find that [Transmedia] committed an unfair or

deceptive business practice, the Consumer Protection
Statute provides that

damages are to be awarded in a sum as much as three

times, but not less than two times, [Devereaux]'s
actual damages.
Transmedia argues that these instructions were erroneous as
a matter of law because they did not instruct the jury that, to
award double or treble damages, it had to find that Transmedia
acted willfully or knowingly. The defendants counter that
Transmedia did not argue this below and, thus, has not preserved
this argument for appeal. We agree.
"A contemporaneous objection is necessary to preserve a
jury instruction issue for appellate review." Rodriguez v.
Webb, 141 N.H. 177, 183 (1996) (quotation omitted). "This
requirement affords the trial court an opportunity to correct an
error it may have made and is particularly appropriate where an
alleged error involves a jury instruction." State v.
Sinbandith, 143 N.H. 579, 581 (1999) (quotation omitted). "This
long-standing requirement is grounded in common sense and
judicial economy, and applies equally to civil and criminal
matters." State v. McCabe, 145 N.H. 686, 690 (2001) (quotation
omitted).

Transmedia first contends that it had no duty to object to

the jury instructions on the ground that they failed to inform
the jury about the willful and knowing requirement because the
defendants bore the burden of proof on damages. Transmedia
argues that "[i]t may . . . have been a tactical decision by
Transmedia's trial counsel not to draw attention to this issue."
To the contrary, both parties had a duty to ensure that the
instructions given to the jury conformed to the law. Transmedia
may not, on appeal, ask this court to address issues that, for
tactical reasons or otherwise, it failed to raise before the
trial judge. See id. "Errors discovered by combing the record
after trial and never properly presented to the trial judge
should not be utilized to set aside a verdict." State v.
Johnson, 130 N.H. 578, 587 (1988) (quotation omitted).

Alternatively, Transmedia asserts that the objections its

trial counsel, who was not associated with appellate counsel,
made to the court's jury instructions were sufficient to alert
the court to the lack of a willfulness instruction. The record
belies this assertion. After instructing the jury, the trial
court invited counsel for both parties to raise issues about the
instructions. Transmedia's counsel stated, "The only thing I
have is I don't think it was made clear that if there was a
violation of the law, if there was, if there was wrongdoing on
the part of [Transmedia], it does not necessarily lead to an
award of damages unless damages are shown."

The court responded:

In the damage portion of the instructions, the
general instruction on damages is always the same, and
that is the plaintiff's obligations to prove actual
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damages and a causal connection to the defendant's
legal fault. So I think that I've explained the
plaintiffs' obligation on damages sufficiently enough.
I'm not going to amplify it.
This exchange shows that the trial court did not understand
Transmedia's objection to concern the lack of a willfulness
instruction. Cf. State v. Bennett, 144 N.H. 13, 17 (1999). It
is clear from the record that Transmedia did not specifically
object to the lack of a willfulness instruction before the jury
retired.
Transmedia next asserts that its post-trial motions
sufficiently alerted the trial court to the lack of a willfulness
instruction. Transmedia first raised the issue before the trial
court in its motion for reconsideration filed in response to the
court's order on Transmedia's post-trial motions. Transmedia's
motion for reconsideration, filed nearly two months after the
trial concluded, is insufficient, as a matter of law, to preserve
the issue for appeal. See Broderick, 136 N.H. at 170.
"If an objection is first raised in a post-trial motion
that is filed several days after the conclusion of the trial, the
objection is not timely regardless of whether it is well
founded." Id.; see Mailhot v. C & R Const. Co., 128 N.H. 323
(1986) (per curiam) (objection to jury instructions raised for
first time in motion for new trial not timely). The purpose of
the timeliness requirement is to ensure that the trial court has
the chance to correct errors at the earliest possible
opportunity. See Broderick, 136 N.H. at 169; see also N.H. R.
Ev. 103 Reporter's Notes (purpose of rule requiring
contemporaneous objection to admission of evidence is to "permit
the court to take cognizance of its error at a time at which it
has a meaningful opportunity to correct its ruling"). "For
counsel, conscious of error, to be permitted to sit by without
making objection until there is less probability the wrong can be
cured, would be to turn a rule of justice and fairness into a
mere trap." Broderick, 136 N.H. at 167 (quotation omitted). We
decline Transmedia's "invitation to enlarge the narrow
exceptions to the contemporaneous objection requirement."
McCabe, 145 N.H. at 690.

Finally, Transmedia asserts that this court should adopt the

"plain error" rule to prevent the "manifest injustice" that
would result were the court not to intervene. Under New
Hampshire law, objections not raised at trial are deemed waived.
See Johnson, 130 N.H. at 587. We have, on numerous prior
occasions, considered and rejected the federal plain error rule.
See, e.g., State v. Menard, 133 N.H. 708, 712 (1990) (reaffirming
rejection of plain error rule); Johnson, 130 N.H. at 587
(rejecting plain error rule, court declines to rule on whether
jury instruction improperly reduced State's burden of proof in
criminal trial absent proper objection by defendant at trial).
We continue to adhere to our general preservation rule.
B. Special Verdict Form

With respect to the CPA claim, the special verdict form

asked the jury the following questions:
QUESTION 5
Do you find that it is more likely than not that
[Transmedia] engaged in any unfair or deceptive
business practices in its dealings with [the
defendants] with regard to the commercial transaction
involving these parties?

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. . . .

QUESTION 6
Please state in words, not numbers, the full amount
of damages which you find more likely than not were
sustained by [the defendants] as a result of
[Transmedia]'s engaging in unfair or deceptive business
practices. Under the Consumer Protection Statute your
damages in answering this question must be not less
than twice, nor more than three times the actual
damages which you have found the [defendants] are
entitled to receive . . . .

Transmedia argues that these questions are incorrect, as a

matter of law, because, like the jury instructions, they fail to
inform the jury that to award multiple damages, it must have
found that Transmedia acted willfully or knowingly. Transmedia
failed to make this argument at trial; thus, this argument is not
preserved for appeal. See Schneider v. Plymouth State College,
144 N.H. 458, 464 (1999).
C. Need for Expert Testimony
At trial, Devereaux testified that, in her opinion, the
value of the restaurant equipment Transmedia liquidated was
approximately $180,000. Transmedia argues that the trial court
erroneously permitted the jury to consider the defendants' theory
of damages based solely upon Devereaux's testimony. Transmedia
contends that the defendants were required, by law, to produce
expert testimony on the value of the restaurant equipment. We
disagree.
Trial courts enjoy broad discretion with respect to the
admission of opinion evidence. Joslin v. Pine River Dev. Corp.,
116 N.H. 814, 818 (1976). New Hampshire Rule of Evidence 701
permits a lay witness to give an opinion provided that it is
rationally based upon the witness's perception and is helpful to
a determination of a fact issue. In this case, we hold that it
was not error for the trial court to admit Devereaux's opinion
about the value of the restaurant equipment. See id.; Roy v.
State, 104 N.H. 513, 517 (1963). Devereaux had knowledge about
how much she originally paid for it and the trial court could
reasonably have found her testimony helpful to the jury in
determining the equipment's value. See McNamara v. Moses, 146
N.H. 729, 732-33 (2001); Gintzler v. Melnick, 116 N.H. 566, 570
(1976).
Expert testimony is required only "where the subject
presented is so distinctly related to some science, profession or
occupation as to be beyond the ken of the average layperson."
Lemay v. Burnett, 139 N.H. 633, 634 (1995) (quotation omitted).
We conclude that under the facts of this case, opinion evidence
on the value of the restaurant equipment offered by its lay
purchaser and owner was properly admitted.
Transmedia argues that the trial court should have
disallowed Devereaux's testimony because she did not opine as to
the depreciated value of the equipment. "New Hampshire does not
require that damages be calculated with mathematical certainty,
and the method used to compute damages need not be more than an
approximation." Maloof v. Bonser, 145 N.H. 650, 655 (2000)
(quotation omitted). The trial court committed no error by
submitting to the jury Devereaux's testimony and that of
Transmedia's expert and permitting the jury, as fact-finder, to
evaluate the credibility of both witnesses and choose to accept
or reject their testimony in whole or in part. See Society Hill
at Merrimack Condo. Assoc. v. Town of Merrimack, 139 N.H. 253,
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256 (1994) (trier of fact could properly find plaintiff's expert,
who relied upon market auction sales to determine fair market
value of real property, not credible). "After all, the essence
of a jury's function is to determine the weight and credence to
be given the evidence at trial." State v. Guglielmo, 130 N.H.
240, 245 (1987) (quotation and brackets omitted); see Morrill v.
Tilney, 128 N.H. 773, 778 (1986).

II. Defendants' Cross-Appeal

In their cross-appeal, the defendants argue that the trial
court erroneously: (1) ruled that they were not entitled to
collect compensatory damages under the CPA, in addition to
multiple damages; and (2) set aside the jury's verdict and
reduced the damage award. We address each of these arguments in
turn.

A. Compensatory Damages under CPA

The jury awarded the defendants $140,600 in compensatory
damages and $407,800 in damages under the CPA. The trial court
ruled that the jury applied a multiplier of 2.9 to the
compensatory damage award to determine damages under the CPA.
The defendants argued that the jury intended the two awards to be
added together, resulting in a total award of $548,400. The
trial
court ruled that adding the awards together was impermissible
because it would exceed the amount authorized under the CPA.

In their cross-appeal, the defendants argue that the trial

court erred. They assert that because they had two causes of
action, one under Massachusetts law and the other under the CPA,
they were entitled to receive both awards. We disagree.
Under New Hampshire law, an injured party "cannot claim
multiple recoveries for the same loss even though different
theories of liability are alleged in the complaint." Phillips
v. Verax Corp., 138 N.H. 240, 248 (1994). In this case, the
defendants alleged that they were injured because Transmedia
seized their assets and sold them without notice. For this
injury, they sought relief under the Massachusetts UCC and the
New Hampshire CPA. Where, as here, the defendants' claims arise
out of the same core of operative facts, they are entitled to a
single recovery only. See id. at 248-49; see also LaBarre v.
Shepard, 84 F.3d 496, 501-02 (1st Cir. 1996). They are not
entitled to multiple recoveries for the same loss. See Phillips,
138 N.H. at 248. Thus, the trial court did not err by ruling
that the compensatory damage award was duplicative.

The defendants mistakenly rely upon RSA 358-A:12 (1995) to

argue that they were entitled to compensatory damages in addition
to treble damages. "On questions of statutory interpretation,
this court is the final arbiter of the intent of the legislature
as expressed in the words of a statute considered as a whole."
Milford Lumber Co. v. RCB Realty, 147 N.H. 15, 17 (2001)
(quotation omitted). We first consider the plain meaning of the
words of the statute, focusing upon the statute as a whole, not
on isolated words or phrases. See id. "We will not consider
what the legislature might have said or add words that the
legislature did not include." Id. (quotation and brackets
omitted).

RSA 358-A:12 states, "This chapter does not affect unfair

trade practices otherwise actionable at common law or under other
statutes of this state." This provision does not address
recovery of duplicative damages for the same unfair trade
practice injury. Rather, it merely states that the remedies
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under the CPA are not intended to be exclusive. Individuals
injured by unfair trade practices may seek a remedy for this
injury under common law or other New Hampshire statutes; they
need not seek a remedy under the CPA. See LaBarre, 84 F.3d at
501-02 (CPA does not permit duplicative recovery; plaintiff's
recovery may not exceed treble damages allowable under CPA);
Calimlim v. Foreign Car Center, Inc., 467 N.E.2d 443, 448 (Mass.
1984) (recovery of cumulative damages under Massachusetts
Consumer Protection Act and any other common law, statutory or
regulatory cause of action not permitted where recovery sought
for same injury).
B. Reduction of Compensatory Damage Award

The defendants argue that the trial court erroneously

reduced the jury's compensatory damage award of $140,600.
"Direct review of a damages award is the responsibility of the
trial judge, who may disturb a verdict as excessive (or
inadequate) if its amount is conclusively against the weight of
the evidence and if the verdict is manifestly exorbitant."
Bennett v. Lembo, 145 N.H. 276, 281-82 (2000) (quotation
omitted). The proper standard for the trial court's review of a
jury award is whether the verdict is fair. See LeFavor v. Ford,
135 N.H. 311, 316 (1992). "A trial judge has the responsibility
not only to see that the trial is fairly conducted but also to
correct or vacate what turns out to be an unfair result."
Thibeault v. Campbell, 136 N.H. 698, 703 (1993) (quotation
omitted). Whether remittitur is appropriate rests with the trial
court's sound discretion. See Brannigan v. Usitalo, 134 N.H. 50,
58 (1991). We will not reverse the trial court's decision to
reduce a jury award unless we find the decision to be
unreasonable. See Thibeault, 136 N.H. at 703. "Our task on
review is not to attempt to ascertain or divine the one and only
correct verdict." Lembo, 145 N.H. at 282 (quotation omitted).
Having reviewed the record, we conclude that the trial court
could reasonably have determined that the jury's compensatory
damage award was both manifestly exorbitant and conclusively
against the weight of evidence. See Thibeault, 136 N.H. at 704.
We disagree with the defendants that the trial court reduced the
compensatory damage award solely because of exhibit 21, which was
comprised of a cover sheet and several receipts for restaurant
equipment charges. Therefore, we do not address their argument
that the court had no authority to do so.

Affirmed.
BRODERICK, NADEAU, DALIANIS and DUGGAN, JJ., concurred.

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